New South Wales Consolidated Acts

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT 123

123 Right to communicate with friend, relative, guardian or independent person and Australian legal practitioner

(cf Crimes Act 1900 , s 356N)

(1) Before any investigative procedure in which a detained person or protected suspect is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may--

(a) communicate, or attempt to communicate, with a friend, relative, guardian or independent person--

(i) to inform that person of the detained person's or protected suspect's whereabouts, and

(ii) if the detained person or protected suspect wishes to do so, to ask the person communicated with to attend at the place where the person is being detained to enable the detained person or protected suspect to consult with the person communicated with, and

(b) communicate, or attempt to communicate, with an Australian legal practitioner of the person's choice and ask that Australian legal practitioner to do either or both of the following--

(i) attend at the place where the person is being detained to enable the person to consult with the Australian legal practitioner,

(ii) be present during any such investigative procedure.

(2) If the person wishes to make any communication referred to in subsection (1), the custody manager must, as soon as practicable--

(a) give the person reasonable facilities to enable the person to do so, and

(b) allow the person to do so in circumstances in which, so far as is practicable, the communication will not be overheard.

(3) The custody manager must defer for a reasonable period any investigative procedure in which the person is to participate--

(a) to allow the person to make, or attempt to make, a communication referred to in subsection (1), and

(b) if the person has asked any person so communicated with to attend at the place where the person is being detained--

(i) to allow the person communicated with to arrive at that place, and

(ii) to allow the person to consult with the person communicated with at that place.

(4) If the person has asked a friend, relative, guardian or independent person communicated with to attend at the place where the person is being detained, the custody manager must allow the person to consult with the friend, relative, guardian or independent person in private and must provide reasonable facilities for that consultation.

(5) If the person has asked an Australian legal practitioner communicated with to attend at the place where the person is being detained, the custody manager must--

(a) allow the person to consult with the Australian legal practitioner in private and must provide reasonable facilities for that consultation, and

(b) if the person has so requested, allow the Australian legal practitioner to be present during any such investigative procedure and to give advice to the person.

(6) Anything said by the Australian legal practitioner during any such investigative procedure is to be recorded and form part of the formal record of the investigation.

(7) An investigative procedure is not required to be deferred under subsection (3)(b)(i) for more than 2 hours to allow a friend, relative, guardian, independent person or Australian legal practitioner that the person has communicated with to arrive at the place where the person is being detained.

(8) An investigative procedure is not required to be deferred to allow the person to consult with a friend, relative, guardian, independent person or Australian legal practitioner who does not arrive at the place where the person is being detained within 2 hours after the person communicated with the friend, relative, guardian, independent person or Australian legal practitioner. This does not affect the requirement to allow an Australian legal practitioner to be present during an investigative procedure and to give advice to the person.

(9) The duties of a custody manager under this section owed to a detained person or protected suspect who is not an Australian citizen or a permanent Australian resident are in addition to the duties of the custody manager owed to the person under section 124.

(10) After being informed orally and in writing of his or her rights under this section, the person is to be requested to sign an acknowledgment that he or she has been so informed.